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ishan Chandra Banikya Vs. Moomraj Khan - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1101,97Ind.Cas.770
Appellantishan Chandra Banikya
RespondentMoomraj Khan
Cases ReferredSurjug Saran Lal v. Dukhit Mahto
Excerpt:
bengal tenancy act (viii of 1885), section 147 a - decree for enhanced rent on compromise--failure of court to record reasons, effect of--jurisdiction, nature of--want of jurisdiction and illegality of procedure distinguished--collateral attack of judgments, when allowed. - .....of a subsequent date under which they were allowed to recover rent at that rate. the present suit for rent was brought in april, 1922, on the basis of the decree of 1912. the subordinate judge has held that the decree of 1912 was without jurisdiction and a nullity. he has also held that the subsequent ex parte decree being based on the previous decree on compromise which was a nullity, realisation of rent by the plaintiffs at the rate claimed is of no assistance to them. on these findings he allowed the plaintiffs a decree at the rate of rs. 3-8-0 only as admitted by the defendants. on appeal by the plaintiffs it is contended on their behalf that the decision of the subordinate judg e is erroneous and that the plaintiffs are entitled to rent at the rate of rs. 12 1-9 as settled by.....
Judgment:

B.B. Ghose, J.

1. This is an appeal from the judgment and decree of the Subordinate Judge affirming the decree of the Munsif. The appeal is by the plaintiffs and it arises out of a suit for arrears of rent claimed at the rate of Rs. 12-1-9 per year. The rent was at the rate of Rs. 3-8-0 per year in 1892, as it appears from a decree. In 1912 plaintiffs brought a suit against the predecessors of the defendants for enhancement of rent which ended in a decree passed on a compromise by which the rent was settled at the rate now claimed by the plaintiffs. Plaintiffs have also produced an ex parte decree of a subsequent date under which they were allowed to recover rent at that rate. The present suit for rent was brought in April, 1922, on the basis of the decree of 1912. The Subordinate Judge has held that the decree of 1912 was without jurisdiction and a nullity. He has also held that the subsequent ex parte decree being based on the previous decree on compromise which was a nullity, realisation of rent by the plaintiffs at the rate claimed is of no assistance to them. On these findings he allowed the plaintiffs a decree at the rate of Rs. 3-8-0 only as admitted by the defendants. On appeal by the plaintiffs it is contended on their behalf that the decision of the Subordinate Judg e is erroneous and that the plaintiffs are entitled to rent at the rate of Rs. 12 1-9 as settled by the decree of 1912.

2. The reason for which the decree of 1912 was held by the Subordinate Judge to be without jurisdiction and a nullity is that the Court in passing the decree in 1912 did not comply with the provisions of Section 147A of the Bengal Tenancy Act, as applicable to Eastern Bengal and Assam. That section runs thus:--'Notwithstanding anything contained in Section 373 of the C.P.C. if any suit between landlord and tenant as such is wholly or partly adjusted by agreement or compromise, the Court shall not pass a decree in accordance with such agreement or compromise unless it is satisfied for reasons to be recorded in writing, that the terms of such agreement or compromise are such that, if embodied in a contract, they could be enforced under this Act:

3. Provided that, in the case of a suit instituted by the landlord to enhance the rent, the enhancement, if any, agreed upon may be decreed if the Court be satisfied, for reasons to be recorded in writing, that such enhancement is fair and equitable and in accordance with the rules laid down in this Act for the guidance of Courts in increasing rents.'

4. The Subordinate Judge has found that in this particular case the Court did not record any reasons nor was it stated that the Court was satisfied that the enhancement was fair and equitable and in accordance with rules. He referred to the case of Sarjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496 which laid down that under similar circumstances for not following the provisions of Section 147A of the Act as applicable to Bengal, the decree was held to be a nullity as without jurisdiction. It was argued before the Subordinate Judge on behalf of the plaintiffs that there was a difference in the language of the sections as applicable to the two portions of the province and so the case cited had no application to this case; The Subordinate Judge did not accept that contention. That argument was repeated before us but I do not think that the difference in the language used in the two sections makes any difference in the principle enunciated in that case. We have, therefore, to examine the case referred to as to whether it laid down the correct principle which should be followed.

5. There cannot be any question that a decree passed without jurisdiction is a nullity. But the expression 'jurisdiction' has not unoften been used with ambiguity, and the distinction between a judgment where jurisdiction is assumed by the Court where there is absolute want of it, and where the Court in the exercise of its jurisdiction acted wrongly in disregard of the law has not always been borne in mind. This want of discrimination in the use of the term has resulted in a good deal of confusion. The distinction between a defect of jurisdiction and an error or irregularity in procedure is pointed out in Hawes on the Jurisdiction of Courts thus:--'In the former case the whole proceeding is coram non judice and void: in the latter the proceeding cannot be impugned as a collateral action, even though it be erroneous upon its face, and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only on a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes for ever.' In Hukum Chand's well-known treatise on the Law of Res Judicata (at page 473), the rule is stated thus:--'It is only when a Court of general jurisdiction undertakes to grant a judgment in an action or proceeding where it has not jurisdiction of the parties or the subject-matter of the action, and this appears from the record by its terms or necessary implication, or by the absence of something essential, that the judgment will be absolutely void, and have no effect. When jurisdiction attaches in the original case, everything done within the exercise of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, and no order which a Court is empowered, under any circumstances in the course of a proceeding over which it has jurisdiction, to make, can be treated as a nullity, merely because it was made improvidently or in a manner not warranted by law or the previous state of the case.' In Woodroffe and Ameer Ali's Law of Evidence (8th Edition, page 413) the rule is thus summarised:--'It cannot be said that wherever a decision is wrong in law or violates a rule of procedure, the Court must be held incompetent to deliver it. It has never been and could not be held that a Court, which erroneously decrees a suit which it should have dismissed as time-barred or as barred by the rule of res judicata, acts without jurisdiction and is not competent to deliver its decree.' This statement of the law was mainly founded on the judgment of Stratchey, C.J., in the Full Bench case of Caston v. Coston 22 A. 270 : A.W.N. (1900) 59 : 9 Ind. Dec. (N.S.) 1212 (F.B.) and was cited with approval by Stanley, C.J., and Burkitt, J., in Nathu Ram v. Kalian Dass 26 A. 522 : 1 A.L.J. 217. The rule may also be formulated in this way, that if some essential preliminary is required before a Court can entertain a suit or application and that doss not exist, the judgment of the Court assuming jurisdiction in such a case is a nullity. The cases of Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 6 M.I.A. 134 : 19 E.R. 50 and Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. 304 : 41 I.A. 251 : 42 C. 72 : 18 C.W.N. 1058 : 1 L.W. 567 : 27 M.L.J. 150 : 16 M.L.T. 353 : (1914) M.W.N. 747 : 16 Bom. L.R. 814 : 20 C.L.J. 555 : 13 A.L.J. 154 (P.C) are examples of this type. But where the Court has jurisdiction to entertain the matter but decides the case erroneously without having regard to the provisions of the law, the judgment is not a nullity but must have due effect if it is not set aside by appropriate proceedings. The cases of Rewa Mahton v. Ram Kishen Singh 13 I.A. 106, 14 C. 18 : 10 Ind. Jur. 428 : 4 Sar. P.C.J. 746 : 7 Ind. Dec. (N.S.) 13 (P.C) and Malkarjan v. Narhari 27 I.A. 216 : 25 B. 337 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.) are examples of this. The case of Mungul Purshad Dichit v. Girija Kant Lahiri 8 I.A. 123 : 8 C. 51 : 11 C.L.R. 113 : 4 Sar. P.C.J. 249 : 4 Ind. Dec. (N.S.) 32 (P.C.) may also be referred to in this connection. There a Court of competent jurisdiction made art order of attachment in execution of a decree on an application which was evidently barred by limitation. Their Lordships of the Judicial Committee observed: 'A Judge in a suit upon a cause of action is bound to dismiss the suit, or to decree for the defendant, if it appears that the cause of action is barred by limitation. But if, instead of dismissing the suit, he decrees for the plaintiff, his decree is valid, unless reversed upon an appeal, and the defendant cannot, upon an application to execute the decree, set up as an answer that the cause of action was barred by limitation.' See also Raja of Ramnad v. Velusami Tevar 59 Ind. Cas. 880 : 48 I.A. 45 : 25 C.W.N. 581 : 9 A.L.J. 168 : 40 M.L.J. 197 : 13 L.W. 290 : (1921) M.W.N. 51 : 33 C.L.J. 218 : 23 Bom. L.R. 701 : 29 M.L.T. 345 (P.C). In the case under consideration there is no doubt that the Court had jurisdiction to entertain the suit with reference to the subject-matter and the parties. It had the jurisdiction to pass a decree in the case. The law only provided that before passing a decree on agreement or compromise, the Court must have regard to certain things and give its reasons. Can it be said that because in passing the decree the Court disregarded the provision of the law in not recording its reasons in writing that it was satistied with regard to certain matters, that its jurisdiction was ousted? I think that the principle which can be gathered from the authorities is that such a decree might be assailed in proper proceedings as erroneous but it cannot be said to have been passed without jurisdiction. This view also finds support in the Full Bench decisions of this Court--Asutosh Sikdar v. Behari Lal 35 C. 61 : 11 C.W.N. 1011 : 6 C.L.J. 320 (F.B.), Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 48 C. 138 : 24 C.W.N. 723 : 31 C.L.J. 482 (F.B.) and Gora Chand Haider v. Profulla Kumar Roy : AIR1925Cal907 . In the last case it was laid down that where a decree was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person to make the decree, the Executing Court may refuse to execute it on the ground of its being made without jurisdiction. I think it is only in these classes of cases that a previous decree may be treated as a nullity. I may also cite as an illustration that under Order XX, Rule 4(2) of the C.P.C. provision is made as to what a judgment should contain. I do not think that any argument was ever advanced to the effect in a subsequent suit that a judgment-given previously which did not conform to that rule was void and without jurisdiction, because the reasons for the decision were not given. I, therefore, hold that the view taken in the case of Surjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496 cannot be supported and with great respect I must dissent from it. In my judgment the) decree of 1912 is valid and binding on the defendants and the plaintiffs are entitled to a decree for rent at the rate settled by the former decree. The decree of the Court below must be modified accordingly, allowing the plaintiffs a decree for rent at the rate of Rs. 12-1-9 per year and cesses at 6 pies in the rupee and 25 per cent, damages with costs in all Courts.

Graham, J.

6. The question involved in this appeal is whether a decree tor enhanced rent under the provisions of Section 147A of the Bengal Tenancy Act can in a sub-sequent suit be treated as without jurisdiction and a nullity on the ground that the procedure laid down in that section for compliance by the Court was not complied with.

7. The facts of the case out of which the appeal has arisen have been stated by my learned brother, whose judgment I have had the advantage of reading and it is not necessary for me to recapitulate them.

8. The section in question requires that before passing a decree the Court shall be satisfied for reasons to be recorded in writing that the terms of the agreement or compromise are such that, if embodied in a contract, they could be enforced under the Act. That procedure was not complied with in the present instance and the Courts below following a decision of this Court, Surjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496, held that the decree was without jurisdiction and a nullity. They accordingly gave a decree forrent at the rate of Rs. 3-8-0 only as admitted by the defendants, and not at the enhanced rate claimed by the plaintiffs.

9. It has been argued before us on behalf of the plaintiffs appellants that the decision is erroneous, and that the plaintiffs are entitled to rent at Rs. 12-1-9 in accordance with the decree of 1912.

10. In the case referred to above it was held that a decree for rent passed in accordance With a compromise in contravention of the provisions of Section 147A of the Bengal Tenancy (Act, i.e., without recording evidence to show what the amount of rent was before the dispute arose is made without jurisdiction and that the tenant is not bound to have it set aside.

11. That decision being the decision of a Division Bench of this Court would ordinarily be binding upon us and it would be our duty under the rules of the Court, if we differ from it, to refer the question to a Full Bench. There is, however, a special circumstance in this case which, in my opinion, renders the adoption of that course unnecessary, and it is this that since the case of Surjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496 was decided there has been a comparatively recent Full Bench decision of this Court, Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 48 C. 138 : 24 C.W.N. 723 : 31 C.L.J. 482 (F.B.), in which a different view was taken in regard to the principle involved. The question, therefore, which arises is how far the principle laid down by the Full Bench affects the decision in the previous case, and whether we ought to follow the previous decision, or be guided by the more recent decisions of the Full Bench. With great respect to the learned Judges who decided the case of Surjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496, I am constrained to admit that I have the doubt expressed by my learned brother as to the soundness of the proposition of law there laid down, and as that decision seems to be clearly in conflict with the view subsequently taken by the Full Bench, I think that we ought to follow the Full Bench decision. As was pointed out in the latter case it is the authority to decide a case, and not the decision given therein which constitutes jurisdiction. Jurisdiction is the power to hear and determine, and does not depend upon the regularity of the exercise of that power, or upon the correctness of the decision pronounced, since the power to decide necessarily carries with it the power to decide wrongly as well as rightly. In short jurisdiction or the existence of jurisdiction is, as it seems to me, a fact, and it cannot be said to be non-existent because it has been irregularly exercised, or because there has been a failure to comply with some direction or directions as to the procedure which should be followed. Failure to comply with such directions cannot be held to deprive the Court of the jurisdiction which it possesses to make the decree. No doubt, a decree passed without compliance with the procedure laid down can be challenged and set aside in an appropriate proceeding instituted for that purpose, but it cannot be impugned in a subsequent suit. Until it has been vacated it must be held to be operative and binding between the parties, and cannot be challenged collaterally in a different proceeding. Indeed it is obvious that, if decrees were allowed to be assailed upon such grounds, a vista of alarming consequences, would arise, as decrees could then be challenged and set at naught by subsequent suit on the ground of failure to comply with the procedure prescribed, and there would be no finality. The inevitable result would be to greatly increase litigation, which it has always been the aim and endeavour of the Legislature as well as of the Courts to check rather than promote.

12. For the reasons stated I agree that the appeal succeeds and that the decree of the Subordinate Judge shall be modified in the manner indicated in the judgment of my learned brother.


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